Compensation awards 2004
Compensation totalling just over £6 million was awarded by employment tribunals in discrimination cases in 2004 - a 44% increase on the previous year. This is despite a decrease in the number of awards made. Our survey covers 368 awards of compensation for discrimination - 13 fewer than in 2003. Each jurisdiction has seen an increase in the average and the median of the total awards, the biggest increase being for disability discrimination. The overall average award (across all jurisdictions) is now £16,276, and the median stands at £7,065.
|
Key points |
Our annual survey of compensation awards covers cases of unlawful discrimination under the Disability Discrimination Act 1995, Race Relations Act 1976 and Sex Discrimination Act 1975. The survey is based on EOR's databank of compensation awards, which is compiled using the written judgements of the employment tribunals, researched from the Employment Tribunal Service records. It provides the most comprehensive and up-to-date picture available of the level of compensation awards. The current survey covers awards made by employment tribunals in Great Britain between 1 January 2004 and 31 December 2004.
Overall, tribunals awarded a total of £6,002,022 in 368 cases. With interest, the overall amount paid out by employers was almost £6.2 million. This is a huge increase on last year's £4.3 million, but is not bolstered by the sort of record-breaking awards seen in 2002. What this year's figures show is a general upwards trend in the amounts that tribunals are prepared to award. Apart from injury to feelings awards in race discrimination cases, all the average and median figures show a substantial increase. Therefore, although the number of awards is down slightly (3.5%), the overall amount has substantially increased.
Compensation for injury to feelings (including aggravated damages) also increased, to £1,884,779 - a 16% increase on the 2003 figure. It represents 31% of the total amount awarded.
In our survey, we analyse the data by average and median figures. The average is used as an indication of the amounts that employers will potentially have to pay for unlawful discrimination, and these tend to be high because they reflect the number of the higher-band awards (over £100,000). The median, however, is a more telling figure. It shows the amount that falls in the middle of the range of awards, where half the awards fall above and half below it, and gives a more realistic picture of what most claimants could potentially recover.
Total award
Our survey focuses on the total awards and injury to feelings awards under each of the jurisdictions. The total award includes: financial loss (loss of earnings, future loss of earnings and, in some cases, other financial losses such as expenses); injury to feelings, aggravated damages and personal injury awards.
Injury to feelings
The amounts shown for injury to feelings also include any awards for aggravated damages, as in many cases where such damages are awarded the amount is included in an overall figure for injury to feelings, with no separate assessment shown. However, where aggravated damages are quantified, we have included references to those amounts in the text with discussion of the higher awards.
In assessing injury to feelings, the employment tribunals should follow guidance from the Court of Appeal in the case of Chief Constable of West Yorkshire Police v Vento (No. 2) (EOR 114), which established three bands of awards (see box 1). Vento was decided at the end of 2002, and the 2003 survey revealed that, during that year, the tribunals referred to the guidelines in less than half the cases. In 2004, there was express reference to the Vento guidelines in around two-thirds of the cases. However, there is still considerable scope for subjectivity within the Vento bands, and there are still inconsistencies in the tribunals' application of the bands
Two-thirds of cases fall into the lowest of the bands (£500-£5,000), which is refl ected in the median awards (see table 2). Disability discrimination attracts the highest awards, with just over half of cases (53%) falling into the lowest band, compared with almost two-thirds (62%) of sex discrimination cases and nearly three-quarters (72%) of race cases. Disability discrimination also attracts the highest proportion, by far, of top-band awards, with 10% falling within that band, compared with just 1% of race cases and 3% of sex cases (see chart 1, below).
Personal injury
Awards for personal injury are dealt with separately. Such an award was made in just 19 cases, compared with 23 cases in 2003. The awards range from £750 to £15,000, showing a decrease in the top end of the range on previous years (£24,000 in 2002 and 2003).
Costs
The most recent report from the Employment Tribunal Service finds that costs were awarded against the respondent in just over 10% of cases (755 out of 7,544 cases that proceeded to a full hearing). In discrimination cases where compensation was awarded, employers were ordered to pay costs in just 21 cases (5.7%). This compares with just nine costs orders in 2003. The average amounted ordered to be paid was £4,705, whereas the median was £1,250. Costs orders were made in 15 sex discrimination cases and six disability cases. There were no such orders in relation to race discrimination. However, the claimant in one successful race discrimination case was ordered to pay costs of £900.
Damages against individuals
Individuals were ordered to pay awards of damages in 27 cases in 2004, compared with 23 in the previous year. The average amount awarded against an individual was £4,926 and the median was £4,000. Some 26 of these awards were made in sex discrimination cases (with one award being for race discrimination). Two out of five (42%) of these cases (11) involved sexual harassment.
Legal principles
There were a number of appeal decisions in 2004 and 2005 to date, that have clarified issues relating to the assessment of compensation. These are set out in box 2. A brief summary of the general legal principles is set out below:
Compensation is calculated as damages would be calculated for any claim in tort or (in Scotland) breach of statutory duty. The aim is to put the claimant in the position they would have been in had the act of discrimination not occurred: Ministry of Defence v Cannock [1994] IRLR 509 EAT. Compensation is to compensate for loss suffered.
The loss must have been caused by the act of discrimination. If there are a number of causes for the loss, such as personal difficulties that contribute to a claimant's inability to seek work, the tribunal will need to assess the extent of loss attributable to the act of discrimination, eg by use of a percentage.
The loss does not have to have been reasonably foreseeable: Essa v Laing Ltd [2004] IRLR 313 CA (EOR 128).
A claimant should be compensated fully for all loss suffered as a result of the act of discrimination: Marshall v Southampton and South West Area Health Authority (No.2) [1993] IRLR 445 ECJ. There is no statutory limit on compensation for acts of unlawful discrimination.
Heads of loss in discrimination cases may include:
§ financial loss
§ injury to feelings
§ personal injury
§ aggravated damages
§ exemplary damages (although there are no discrimination cases where this has been awarded).
A claimant must not be compensated for the same loss twice, so the tribunal must be clear as to what loss is being awarded under which legislation. Where the claimant has succeeded in unfair dismissal and unlawful discrimination, and financial loss exceeds the maximum that can be awarded for unfair dismissal, the award should be made under the discrimination legislation so that the claimant is compensated in full for their loss: D'Souza v London Borough of Lambeth [1997] IRLR 677, EAT.
Failure to comply in full with an applicable statutory dispute resolution procedure will normally lead to compensation being increased or decreased by between 10 and 50%, depending on who was at fault in not completing the procedure. As these provisions only came into force in October 2004, there are no cases in this year's survey that were affected by these new rules.
In determining the amount of the award, tribunals should "gross up" any parts that will be taxable, so that the claimant receives the full net compensation, after deduction of tax.
Interest is payable on awards for past financial loss and injury to feelings.
Where there is more than one respondent held liable for unlawful discrimination, the tribunal will normally make separate awards against them but it may, alternatively, make a joint and several award of compensation against the respondents (Way and another v Crouch, box 2).
The Employment Appeal Tribunal will only interfere with a tribunal's award of compensation if the tribunal has made an error of law or reached a decision that no reasonable tribunal could reach on the evidence.
Analysis of findings
Our findings are analysed by jurisdiction. Under each heading there is a comparison with the previous year, analysis by category and summaries of some of the highest awards. As last year, we also include a comment on employment sector but, as stated previously, the numbers in each sector are too small to draw any firm conclusions. However, this year's figures start to set a trend, with the same sectors experiencing the highest number of cases as last year. There is also a breakdown by gender. Overall, women brought almost three-quarters of the cases (72%), but the average amount awarded to them (£14,745) was lower than for men (£20,216). The median for men was £7,500, compared with just under £7,000 for women (£6,941).
Sex discrimination
The number of cases involving awards for sex discrimination in 2004 remained stable at 216 (compared with 219 in 2003). However, overall compensation awarded by employment tribunals increased by 45% to £2,593,729 - up from £1,783,125 the previous year. With interest, employers were ordered to pay a total of £2,671,751 in 2004 (compared with £1,850,561 in 2003).
In all, 218 individual awards were made - as two cases involved more than one applicant. The average award increased to £11,898 in 2004, a rise of 49% from £7,960 the previous year. The median award continued its upward trend. This increased by 10% in 2004 to £6,243, from £5,677 in 2003 - a 14% rise on the 2002 total of £5,000 (see table 1).
Distribution
The highest award in a sex discrimination case was £175,000 (inclusive of interest), and the lowest, excluding interest, was £50. Table 3 reveals that most employers found guilty of sex discrimination are likely to be ordered to pay out £5,000 or more. Three out of five (59%) of all awards in 2004 were for this figure or above. Another 38% were for between £1,000 and £4,999. The most frequent awards were in the £5,000 to £9,999 band, with 31% of awards falling within this range. Awards for less than £1,000 more than halved in 2004 (3%, compared with 7% the previous year). By contrast, awards for more than £20,000 almost doubled - 28 in 2004, compared with 15 in 2003. Three of these awards were for £100,000 or more (compared with only one the previous year). These are detailed below.
Griffin v West Midlands Police Authority (3 June 2004; case no.5208776/00) (EOR 137).
Mrs Griffin, a civilian scene of crimes officer (SOCO), worked on a job-share basis. In 1999, new shift-working arrangements were introduced that Mrs Griffin could not comply with due to childcare commitments.
The employment tribunal found that the new working pattern was a requirement and held that the appropriate pool was all SOCOs within the West Midlands area. All 57 men in the pool (100%) could comply with the requirement, but three of the 30 women (10%) could not. The tribunal concluded that a large proportion of women with childcare responsibilities would be unable to work the new hours.
The tribunal found that the respondent had failed to justify the imposition of the requirement and had made no attempt to assess the potential discriminatory impact of the arrangements on Mrs Griffin. Nor had there been any considered attempts to balance the needs of the Police Authority with the reasonable requirements of Mrs Griffin.
Injury to feelings
The tribunal awarded £15,000 for injury to feelings, placing it at the top of the middle band in Vento. The injury resulted from a state of affairs that existed for over 15 months. Mrs Griffin suffered health problems and had resigned from employment she found congenial. She had lost confidence in her own abilities.
Personal injury
The tribunal concluded that Mrs Griffin had suffered, and continued to suffer, from reactive depression for which the workplace situation was 80% to blame. The tribunal placed the illness in the moderate-to-moderately-severe category and awarded £7,200 for psychiatric injury (after the 20% deduction).
Financial loss
The tribunal accepted that Mrs Griffin's feelings of lack of worth were due to the respondent's actions and initially prevented her from seeking work. She eventually obtained employment at a reduced salary. The tribunal assessed that there was a 10% chance that she would obtain comparative alternative employment between February 2004 and February 2009, and a 50% chance of doing so between February 2009 and February 2014.
The tribunal also awarded 50% of the cost of Mrs Griffin moving house, accepting that the loss of job was a contributing factor for moving. A basic award and loss of statutory rights were also awarded as compensation for unfair dismissal. Awards were to be grossed up, to ensure that Mrs Griffin received the appropriate net sum, after deduction of tax. Following the principles set out by the tribunal, the parties agreed an award of £175,000 (inclusive of interest).
McLaughlan v House of Fraser (Stores) Ltd (26 May 2004; case no.1805792/02) (EOR 137).
Miss McLaughlan, who worked as a manager in the respondent's department store in Leeds, was subjected to unreasonable investigation and disciplinary proceedings over a period of time. The tribunal concluded that a man would not have been treated in the same way.
Injury to feelings
The investigation and disciplinary process took place over a considerable period of time and the impact on Miss McLaughlan was severe. Her health was affected to such an extent that a hospital doctor wanted to admit her to a psychiatric unit. The loss of her career had a very profound impact on Miss McLaughlan's sense of wellbeing and confidence, and the consequences were continuing. The tribunal awarded £15,000 for injury to feelings, which it placed at the upper end of the middle band in Vento.
Financial loss
Miss McLaughlan had unsuccessfully sought work, both at the same, and then a lower, managerial level. The tribunal considered it likely that prospective employers were reluctant to employ someone who had been dismissed for the reasons given by the respondent. The tribunal awarded loss of earnings to the date of the hearing of £49,408, plus £8,255 for loss of car and other benefits.
The tribunal estimated that, with the benefit of the tribunal's decision, Miss McLaughlan would be able to obtain other work within six months, but considered that she was most unlikely ever to reach a comparable level of income to that which she would have enjoyed had she remained with the respondent. The tribunal decided on a figure of £100,000 less mitigation of £19,000 for future loss of earnings. The respondent was ordered to pay McLaughlan a total award of £168,052 (plus £10,974 interest) after deduction of tax.
Walker v Phones 4 U Ltd (31 August 2004; case no.2603114/03) (EOR 137).
Mrs Walker, an area sales manager with Phones 4 U Ltd, resigned after being subjected to sexual harassment and unfair disciplinary proceedings. The employer also failed to deal adequately with her grievance following unwelcome attention and comments from a divisional director of the company.
Injury to feelings
Satisfied that this was a serious case, the tribunal considered that the injury to feelings fell towards the top end of the middle band in Vento and awarded £14,000.
Aggravated damages
The tribunal also awarded £5,000 aggravated damages to reflect the manner in which the employer dealt with the act of discrimination - Mrs Walker's line manager failed to deal with her complaints of sexual harassment and the disciplinary process was operated in a manner prejudicial to, and to the detriment of, Mrs Walker.
Personal injury
Medical evidence showed Mrs Walker to be suffering from a major depressive disorder of a moderate-to-severe variety, which was caused by her being subjected to unlawful sex discrimination by the respondents. The tribunal awarded £12,000 for personal injury.
Financial loss
An award of £41,586 was made for financial loss to the date of hearing and a further £44,319 was awarded for 12 months' future loss. Sums were also awarded for life assurance (£33) and permanent health insurance (£75). The total award for sex discrimination was £117,035 (plus £3,510 interest). In addition, Mrs Walker was given a basic award of £260 and £250 for loss of statutory rights as compensation for unfair dismissal.
Total award levels by category
There are significant differences in the level and numbers of awards in sex discrimination cases according to category (see table 5). We focus on six main categories: harassment; dismissals due to pregnancy; dismissals not due to pregnancy; victimisation; recruitment and promotion; and terms and conditions.
Cases involving dismissal due to pregnancy (96) comprised by far the largest number of cases in 2004, accounting for 44% of all sex discrimination cases. This was up from 37% in 2003. The next biggest category of cases concerned sexual harassment (53) and represented almost one in four (24%) cases (see below).
Further analysis of the survey results reveals that almost half (49%) of sex discrimination cases (107) in 2004 featured pregnancy and childcare issues. This is similar to 2003, where just over half (51%) related to these issues. This is discussed more fully below.
Victimisation continues to be taken very seriously by employment tribunals. Although only 14 cases (6%) involved this issue, the highest median award (£9,324) and the second highest average award (£18,105) were for victimisation cases.
The highest average award (£22,151) was in the dismissals not-due-to-pregnancy category, compared with £8,943 in 2003. The highest median award in 2004 (£9,324) was for victimisation, and is higher than the highest median award (also for victimisation) in 2003 (£7,500).
The lowest average award (£4,386) in 2004 was in the recruitment and promotion category and the lowest median award (£3,362) was once again in the terms and conditions category.
Injury to feelings
In 2004, compensation for injury to feelings (including aggravated damages) topped £1 million, at £1,003,019, and accounted for 39% of the total compensation awarded in sex discrimination cases. Both the average (£4,601) and median (£3,000) awards for injury to feelings in 2004 were higher than the previous year, when they were £3,685 and £2,500 respectively (see table 2).
Table 4 shows that more than one in three (36%) awards for injury to feelings were for £5,000 or higher in 2004. This compares with 28% at this level in 2003. The lowest injury to feelings award in 2004 was for just £50, and the highest £22,500. There were four awards for £20,000 and above, and these cases are detailed below.
A v R Ltd (6 January 2004; case no.3102936/03).
A, a single mother with two children, applied for a job as a kitchen porter in the respondent's pub and restaurant. At the job interview Mr Treadwell, a director of R Ltd, indicated that he had never employed women in his kitchens and did not consider that women were up to the work. However, after completing two trial shifts (other kitchen porters had only undertook one trial shift), A was appointed full time. Of the eight kitchen staff, A was the only woman.
From almost the start of her employment, the head chef, X, another chef, Y, and Mr Treadwell subjected A to name-calling, such as "fucking bitch". She was the target of sexual comments, and physical abuse, such as having eggs and gateaux thrown at her. On approximately six occasions, X exposed his genitalia in front of her.
The verbal and sexual abuse caused A visible distress. Initially, she complained to the director, but he was often present when the abuse took place, and told her to take the matter up with the head chef. Subsequently, A took an overdose. The Southampton tribunal was satisfied that the conduct of the staff at the restaurant was a contributory factor to A's overdose.
Following a period of sickness absence, A returned to work. She was told she could no longer take the holiday leave she had previously booked with the respondent, because she had had "enough time off already". A took the time off anyway and when she returned to work was told she no longer had a job.
The tribunal found that A "did suffer detriment and indeed was dismissed" and this was "plainly gender-specific" and constituted sexual harassment and sex discrimination.
Injury to feelings
Reflecting the Vento guidance, the tribunal awarded £17,500 for injury to feelings. It found that A "was the subject of vilification and low regard" and "felt threatened, humiliated and upset". The course of conduct that had been described: "… arose solely on the grounds of the applicant being a woman working alone in an all-male kitchen".
Aggravated damages
The tribunal also concluded that: "The action of Mr Treadwell, the director, in developing a culture within his business of disrespect and low regard for females, his direct abuse and encouragement of others to abuse, was particularly insulting and oppressive to the applicant. We consider that the actions of the respondent were high-handed, wilful and showed total indifference to the distress suffered by the applicant. We consider it proper to award, in addition to the general damages for injury to feelings, a further sum by way of aggravated damages of £5,000."
A was also awarded £1,302 for loss of earnings, making a total award of £23,802 (plus £1,628.80 interest).
Amy Goddard v Wilkinson Hardware Stores Ltd (16 August 2004; case no.3104507/2003) (EOR 136).
Ms Goddard began work in one of the respondent's stores in September 2000, when she was aged 20. Mr X was the manager of the store. Ms Goddard was emotionally vulnerable and receiving treatment for general anxiety disorder and obsessive compulsive disorder. From early in her employment, X first offered her sympathy and encouraged her to confide in him. He then started to ask her for sexual favours and subjected her to unwanted physical and verbal sexual harassment.
The tribunal found that Ms Goddard's treatment by X was less favourable than would have been accorded to a man. The tribunal rejected a "reasonable steps" defence advanced by the respondent. Although the respondent had an equal opportunities policy and a policy related to harassment at work, the training and induction courses did not bring these sufficiently to the attention of the workforce. The management was insufficiently trained and subsequently unaware of the policies and procedures, or how to operate them. There was a confidential helpline, but its existence was not sufficiently publicised to staff.
Injury to feelings
The tribunal considered that there were a number of disturbing features of X's campaign of harassment. It involved an abuse of power by a manager over his subordinate; the calculated exploitation of an employee whom X knew to be vulnerable; the exploitation of a young woman by an older man; the deliberate attempt to destabilise the relationship between a young woman and her husband; and there was the deliberate creation of stress at work for Ms Goddard to increase her emotional dependence upon X. Having regard to these factors, the nature of the harassment and the length of time over which Ms Goddard was subjected to harassment (two years), the tribunal considered this to be a case that fell within the highest of the three bands in Vento and awarded £20,000 compensation for injury to feelings. No financial losses were claimed.
Goldwater v (1) Miaguard National Security (2) Elite Security (UK) Ltd (3) Mr D Hudson (13 December 2004; case no.2500388/2004).
Miss Goldwater began working for Miaguard Security Ltd in October 2001 as a personnel manager. Her partner also worked there. Miss Goldwater informed Mr Hudson, her boss, that she was pregnant in July 2003.
Miss Goldwater noticed an immediate change in his attitude towards her. He constantly made negative comments, including comments about her partner's ability to cope with a disabled baby.
Attempts were made to discredit and undermine Miss Goldwater. Changes were made to the working hours of both Miss Goldwater and her partner. Her partner also had his supervisory role removed, leading him to resign. In November 2003, Miss Goldwater was telephoned at home, wrongly accused of a breach of confidence and told not to return to work. She received her last pay slip in November, which stated "dismissed".
During the tribunal proceedings, the respondents tried to raise claims for contractual sums that had not been mentioned before and witness statements attacked Miss Goldwater's competence, although Mr Hudson had never claimed that she had in fact been dismissed because of incompetence.
Injury to feelings
The tribunal found that Miss Goldwater had been dismissed because of her pregnancy and awarded injury to feelings within the mid-band of Vento, commenting: "It was more than a simple pregnancy dismissal and we considered £12,000 was an appropriate measure of the injury caused."
Aggravated damages
Making an award of aggravated damages, the tribunal said: "We have taken into account the fact that the claimant was not on a high wage, but that the behaviour of the respondents, for which we find them jointly and severely liable, was such as to cause her very real distress at a time of vulnerability when she was pregnant with a child diagnosed with cystic fibrosis. Effectively, the respondents made life extremely difficult for both the claimant and her partner at a time when they needed the security of their jobs and incomes." The tribunal awarded £8,000 for the "serious nature" of the aggravation.
Financial loss
A sum of £3,744.84 was awarded for loss of earnings and £5,572.84 for future loss. The final award for sex discrimination was £29,317.68 (plus £1,732.29 interest). In addition, awards were made for unlawful deduction of wages (£134.87), breach of contract (£337.18), loss of statutory rights (£200) and a basic award of £406 for unfair dismissal.
Costs
The tribunal was also satisfied that the respondents had acted unreasonably in the way proceedings had been conducted and made an award of £10,000 for legal costs.
Carlucci v Oracle Corporation UK Ltd (20 December 2004; case no.2700870/03 and 2702150/ 03) (EOR 141).
Ms Carlucci was a highly successful sales manager. However, she was discriminated against by being demoted upon her return from maternity leave, and in relation to a grievance that she raised when the company wrongly calculated her maternity pay. Other incidents gave rise to direct discrimination, and she was forced to resign as a result of the "boys' club culture" of the organisation.
Injury to feelings
The tribunal concluded that: "The sex discrimination to which [Ms Carlucci] was subjected to resulted in her dismissal and the ending of a very successful and profitable career with the respondent." The discrimination was "serious" and fell at the upper limit of the Vento middle band. The tribunal awarded £15,000 for injury to feelings.
Aggravated damages
The tribunal also awarded £5,000 aggravated damages, finding that the respondent's conduct when bringing about the discrimination was high-handed. Evidence of this included the respondent's reaction to her grievance and its failure to provide full and/or accurate replies to the Sex Discrimination Act (SDA) questionnaire.
Financial loss
The tribunal was satisfied that Ms Carlucci would have remained an account manager with the respondent, but for the respondent's discriminatory acts. It awarded her loss of earnings of £69,644.35, dating from her dismissal to 1 December 2003, when she decided to return to live in the US and to move out of the IT industry. The tribunal accepted that, until this date, Ms Carlucci was unable to face a return to work in the IT sector with any confidence and was unable to mitigate her loss.
The total compensation for sex discrimination was £89,644.35 (plus £5,387.66 interest). Ms Carlucci was also awarded a basic award (£1,820) and an amount for loss of private health cover (£1,354) as unfair dismissal compensation.
Injury to feelings awards by category
There was a marked variation in the level and numbers of awards for injury to feelings according to the type of sex discrimination involved (see table 6). The highest average award (£7,929) was in victimisation cases, closely followed by harassment cases (£7,631). Harassment cases also attracted the highest median award (£7,500). The lowest average (£2,463) and median (£1,325) awards were in the recruitment and promotion category.
The largest number of awards (96) was made in cases involving dismissal due to pregnancy (44%). Dismissals not due to pregnancy comprised 15% of cases (33). However, the average (£5,929) and median (£5,000) injury to feelings awards in non-pregnancy cases continue to be higher than in pregnancy-related dismissal cases (£3,766 and £3,000 respectively).
Aggravated damages
Separate awards for aggravated damages were stipulated in 13 sex discrimination cases, compared with 16 in 2003. Awards varied between £1,000 and £8,000 (see Goldwater v (1) Miaguard National Security (2) Elite Security (UK) Ltd (3) Mr D Hudson above), compared with the range in the previous year of £500 to £5,000.
Personal injury
An award for damages for personal injury was made in 10 sex discrimination cases in 2004, twice the number of such awards in 2003. The highest award for personal injury damages in 2004 was £12,000 (see Walker v Phones 4 U Ltd above), compared with £3,500 the previous year. The lowest award was for £750.
Awards by gender
Of the 218 awards made in sex discrimination cases last year, just 12 (5%) were for male applicants - a 50% increase on the eight awards made in 2003. The average and median amounts awarded remain considerably higher for women than for men.
The average total award for women was £12,084 and the median was £5,895. The comparative figures for men were £8,824 and £2,000 respectively. In relation to awards for injury to feelings, the average award for women was £4,685, compared with an average for men of £3,542. The median award for women was £4,000 and £2,000 for men.
Of the 12 cases, three concerned sexual harassment (including Newton v West Herts Hospital NHS Trust (EOR 136) and Brown v London Underground Ltd (EOR 135)), three involved the discriminatory application of dress codes and three saw men rejected for perceived "women's jobs", such as cleaning and telephone work. One case involved victimisation, while in another, a male care worker's hours were reduced because some clients had requested female carers (see Johnstone v Fife Council).
One case concerned a discriminatory response to a man's request for fl exible working hours to accommodate his home caring responsibilities and resulted in one of the highest awards (£54,981) in 2004 (see Jervis v Hertfordshire Partnership NHS Trust).
Johnstone v Fife Council (30 July 2004; case no.S/400394/00).
Mr Johnstone had been employed with Fife Council since October 1981 as a home carer. In 1999, the respondent introduced a new contract of employment for all 1,400 home carers and re-organised working hours to improve flexibility and efficiency.
Mr Johnstone did not accept the new contract, believing that he had been allocated an unfairly low number of working hours. The respondent said that his hours had been reduced because a number of female clients had asked for female carers. The respondent entered into negotiations with Mr Johnstone, but eventually he went off sick, suffering from stress and anxiety, which was solely caused by his dispute with the respondents.
Mr Johnstone claimed unfair dismissal and sex discrimination. The tribunal found that Mr Johnstone's dismissal was fair because, out of 1,400 workers, he was the only employee who remained unhappy with the new contract.
However, his sex discrimination claim succeeded. The tribunal found that the respondents could not rely on a "genuine occupational qualification" defence and therefore Mr Johnstone should not have had his hours reduced. He lost actual and potential income and was treated less favourably than a woman would have been.
Injury to feelings
In awarding compensation for injury to feelings the tribunal considered Vento. It accepted that Mr Johnstone had a genuine psychiatric illness that arose because of his dispute with the respondents, which included sex discrimination, and awarded £2,000.
Financial loss
Loss of income was calculated from November 1999, when Mr Johnstone's hours were first reduced, until he went off sick in June 2001. This amounted to £4,638. However, the tribunal considered that sex discrimination played a minor part in the applicant's dispute and consequent illness and made no award for future loss. The total award for sex discrimination was £6,638.
Jervis v Hertfordshire Partnership NHS Trust (7 June 2004; case no.3302614/02) (EOR 141).
Mr Jervis, a mental health nurse, worked for the respondent in a specialised care unit. He had worked for the respondent's predecessors since 1972 and had worked night shifts since about October 1995. His comparator, Mrs True, was a mental health nurse who worked morning or afternoon shifts.
Mr Jervis and Mrs True were informed that, as from 1 November 1998, they were to work rotating day and night shifts, as a result of a management decision that there should be 24 hours nursing cover and that all nurses should work a rotating shift pattern.
In February 1999, it was agreed that Mr Jervis would remain on night duties, but work six weeks a year on day duties. This was so he could be at home during the day to help his wife, who suffered from high blood pressure and kidney problems. The Watford tribunal found that this revised shift pattern was a contractual agreement. The respondent subsequently sought to vary this agreement unilaterally and require Mr Jervis to work the rotating shift pattern.
Mr Jervis brought grievances that were dismissed. He was pressured to return to his job from sick leave and work a rotating shift pattern, being told that if he failed to do so, he could be dismissed on capability grounds. Mr Jervis resigned, aged 51, taking early retirement. Mrs True worked only very occasional night shifts because of childcare difficulties. Negotiations between her and the respondent continued and this remained the position until September 2002.
The tribunal found that Mr Jervis was subjected to unlawful sex discrimination in that he was treated less favourably than Mrs True. The respondent did not insist on Mrs True carrying out night shifts in the way that it insisted Mr Jervis carry out day shifts. The tribunal dismissed a claim of race discrimination (Mr Jervis is black), but found that he had been discriminated against on grounds of his sex and was unfairly dismissed.
Injury to feelings
Mr Jervis argued for an injury to feelings' award in the top bracket of Vento and the respondent for the lower end of the middle bracket. Commenting that "the applicant's submission is preposterous" and that "the respondent has made too great a concession," the tribunal awarded £3,000 for injury to feelings.
Financial loss
The tribunal found that the respondent contributed to psychological illness suffered by Mr Jervis to the extent of 50%. It calculated loss of earnings at £9,365 and future loss at £4,045. It considered that, after appropriate treatment, Mr Jervis would be able to return to full-time employment. An additional award of £38,569.59 was made for pension loss, bearing in mind Mr Jervis' long service and relatively short period until retirement. The tribunal awarded a total of £54,981 (plus interest of £2,031) for sex discrimination and a basic award of £3,930 for unfair dismissal.
Employment sector
As in 2003, by far the largest number of awards (78) were against employers in the general services sector, accounting for 36% of awards. Retail and wholesale was the next largest sector (17%), followed by hotel and catering (10%). Public sector employers had to pay compensation in only 13 cases, accounting for 6% of the total, but the average total award was high, at £23,933. The highest average total award was in the finance sector, at £26,383, although only five awards (2.3%) fell within this sector.
Pregnancy and childcare
Our survey reveals that pregnancy continues to be a huge source of discrimination against women in the workplace, supporting the EOC's most recent findings.In 2004, 44% of cases where compensation was awarded involved pregnancy-related dismissal - up from 37% in 2003. Another 5% of cases were linked to childcare issues.
This means that around half (49%) of all sex discrimination cases where compensation is awarded continue to involve pregnancy and childcare issues.
Both the average (£9,473) and median (£7,231) awards for pregnancy-related dismissal cases continued to rise in 2004, indicating that the tribunals are taking a serious approach to this issue. The average (£3,766) and median (£3,000) awards for injury to feelings also showed a slight increase. Indeed, two of the highest injury to feelings awards in 2004 featured pregnancy-related discrimination. The applicant was awarded £89,644 in Carlucci v Oracle Corporation UK Ltd and £39,318 in Goldwater v (1) Miaguard National Security (2) Elite Security (UK) Ltd (3) Mr D Hudson.
Right to work flexibly
Twenty-three cases (11%) in our 2004 survey also featured flexible-working requests - more then twice the number of cases (10) the previous year. While the success of the "right to request flexible working" regulations is still being monitored, tribunals repeatedly found that employers' failure to grant flexible-working requests from their employees was unlawful under the provisions of the SDA.
The highest award (£175,000) made in 2004 featured this issue (see Griffin v West Midlands Police Authority). Interestingly, while the need to work flexibly because of home caring obligations is often perceived as a "woman's issue," a tribunal awarded a male applicant £54,981 compensation as a result of this type of discrimination - among the highest awards in 2004 (see Jervis v Hertfordshire Partnership NHS Trust).
Sexual harassment
Cases concerning sexual harassment remain the second-most common category of sex discrimination, after dismissals due to pregnancy, to feature in our survey (see table 5). Harassment continues to account for around one in four cases - 24% in 2004, 23% in 2003 and 25% in 2002. The levels of awards in these cases indicate that employment tribunals continue to regard this form of sex discrimination as a grave matter.
Both the average (£14,412) and median (£8,800) awards for sexual harassment cases showed a marked increase in 2004 (compared with £8,146 and £5,586 respectively in 2003). The average (£7,631) and median (£7,500) awards for injury to feelings also rose dramatically (compared with £3,766 and £3,000 respectively the previous year).
Sexual harassment was the issue in the case with third-highest award (£117,036) in 2004 (see Walker v Phones 4 U Ltd ), and in two cases with the highest injury to feelings awards (A v R Ltd and Goddard v Wilkinson Hardware Stores Ltd), where the applicants received £22,500 and £20,000 respectively.
There were also substantial awards made in three cases involving male applicants, with the applicants receiving £10,000, £9,000 and £8,000 respectively (Newton v West Herts Hospital NHS Trust, (A) v (B), (C) and (D) and Brown v London Underground Ltd).
Additionally, sexual harassment cases comprise two out of five (42%) of sex discrimination cases where awards were made against individual respondents.
Job segregation
The 2004 survey also indicates that gender stereotyping at work continues to be a problem, with some occupations still perceived as no-go areas, either for women or men. Sex discrimination operates both vertically (particularly in relation to women getting into management positions - even when women comprise the majority of employees) and horizontally (where few individuals of one sex are employed by the organisation).
Examples of vertical discrimination have been discussed in the cases above, where successful and senior women have had their careers ruined by prejudiced and malicious male bosses (see McLaughlan v House of Fraser (Stores) Ltd, Walker v Phones 4 U Ltd and Carlucci v Oracle Corporation UK Ltd).
Examples of horizontal discrimination can be found in both small private companies (see A v R Ltd ), where there was only one woman in a kitchen of eight) and large public sector organisations (see Griffin v West Midlands Police Authority).
However, stereotypical attitudes are not just a problem for women. Three of the cases brought by men featured a refusal to employ them in perceived "women's jobs", such as cleaners and telephonists.
Failure to act
One of the main themes to emerge from the analysis of 2004's sex discrimination employment tribunal decisions is tribunals' increasing concern at the failure of employers to take appropriate action in response to their employees' complaints of sex discrimination. Employers are being penalised for not following their own procedures - whether a straightforward grievance procedure in smaller companies or a fully fl edged equal opportunities policy in larger organisations - when staff make a genuine complaint of discrimination. This is likely to increase as a result of the introduction of the Statutory Disputes Procedures, which came into force in October 2004.
Even organisations that have put some time and effort into putting in place relatively sophisticated equal opportunities policies are being caught out (see Goddard v Wilkinson Hardware Stores Ltd and Brown v London Underground Ltd). The message is clear: without robust grievance procedures backed by thorough line management training, organisations will continue to fall foul of the law and suffer expensive compensation payouts, as well as adverse publicity.
Race discrimination
Employment tribunals awarded compensation totalling £740,887 in 54 cases of race discrimination in 2004. With interest, the total payout came to £762,729.
The number of cases involving race discrimination fell by 11% from 61 cases in 2003 to 54 in 2004. The total amount of compensation awarded, however, was only marginally down, as the median and average awards were higher in 2004 than in the previous year.
The average compensation awarded to successful claimants was £13,720 (£12,225 in 2003), with the median standing at £6,104 (£5,100 in 2003).
The number of awards in cases of race discrimination is significantly fewer than those for sex and disability discrimination. Some of the possible reasons for this are:
statistics showing that race discrimination cases are the least likely to succeed of all tribunal cases - only 16% of race discrimination cases win at tribunals (Claims of Race Bias Fall by the Wayside, Labour Research, April 2002);
bringing employment tribunal proceedings puts a claimant at risk of victimisation; and
the cost and complexity of bringing a case, particularly as fewer applicants are receiving legal help in race discrimination cases (ID: 43933 - GET FROM CMS).
Distribution
Table 7 shows the distribution of awards in race discrimination cases in 2004. Excluding interest, the lowest award was £500, with the highest being £90,158.
Just as in 2003, some 39% of awards were lower than £5,000. Apart from an upward movement in 2002, the level of awards at the lower end of the scale has stayed fairly consistent over the years. Back in 2001, 15% of all race cases were awarded compensation totalling less than £1,500. In 2004, 16.6% of cases attracted this level of compensation. This is in contrast with sex and disability cases, where the number of cases falling within the lowest levels of compensation has decreased.
However, as in the sex and disability cases, employers are most likely to have to pay out £5,000 or more for race discrimination, with 61% falling into the £5,000 or more bands. There was also an increase in the number of cases falling within the highest bands. In 2004, some 37% of awards were for £10,000 or more, compared with 32.7% the previous year. There were also more awards for £20,000 and above than in 2003 - 20.4% compared with 13%. However, there were no cases where over £100,000 was awarded, compared with one such case in 2003, and with three sex and eight disability cases at this level.
Highest award
Pachappen v Accor UK t/a Ibis Hotel (22 March 2004; case no.2203619/02) (EOR 137).
An engineer subjected to racial abuse on an almost-daily basis and then dismissed was awarded compensation of £90,158, plus interest, by a London Central tribunal.
Mr Pachappen's manager, Mr Rofail, who is of Arab origin, racially abused Mr Pachappen about his Hindu religious background and Indian origin. The tribunal commented that it was immaterial whether the manager intended the remarks to be discriminatory; he would not have treated an Arab person in the manner in which he treated Mr Pachappen. Mr Rofail subsequently dismissed Mr Pachappen.
Injury to feelings
The tribunal awarded £20,000 for injury to feelings, placing this in the middle of the top band in Vento. The tribunal considered that the racial abuse to which Mr Pachappen was subjected was an aggravating feature, and awarded £3,000 for aggravated damages.
Financial loss
Mr Pachappen was also awarded full loss of earnings to the date of the remedies hearing and one year's future loss of earnings - a total of £69,771, including interest.
Total awards by category
In table 9 we look at total award levels by category. Some cases succeeded in more than one category, with the breakdown as follows: dismissal (21), less favourable treatment (19), terms and conditions (13), harassment (9), victimisation (9) and recruitment and promotion (7). This reveals a marked fall in the level of harassment cases compared with previous years - 26 in 2002 and 29 in 2003.
Dismissal cases always feature prominently in race discrimination cases and 2004 was no exception, with the largest number of awards (27%) being for dismissal because of an individual's race. Harassment cases have in previous years always made up a large proportion of total race discrimination cases, but in 2004 the number of awards in this category fell sharply, to make up just 11.5% of all awards. Cases in the terms and conditions category more than doubled, to 17% of all race discrimination cases in 2004. Some 11.5% of awards were made against employers in respect of victimisation and 9% for recruitment and promotion.
The level of awards rose in the categories of dismissal and harassment. The highest median award is for dismissal, which has risen to £15,159 - a huge increase of 152% on the previous year (£6,000). The median award for harassment now stands at £8,043 - a rise of 61% on the 2003 figure (£5,000). However, as there were only nine cases of harassment in 2004, care needs to be exercised when seeking trends in level of awards by category. This caution also holds true when looking at the category of terms and conditions, which saw a sharp fall in the median from £11,500 in 2003 to £1,435 in 2004. However, in 2003 there were just six cases in this category.
The average award for both dismissal and harassment categories is significantly above the median because the highest award in 2004 (Pachappen v Accor UK t/a Ibis Hotel, above) fell into the two categories, thus boosting the level of compensation awarded in both. As we have previously observed, very low or very high awards can skew averages.
Injury to feelings
Awards for injury to feelings
-including aggravated damages but excluding personal injury
-accounted for 36% of the total compensation awarded for race discrimination in 2004. This is a reduction on the previous year, when injury to feelings plus aggravated damages represented 48% of the total compensation.
In 2004, the total awarded for injury to feelings plus aggravated damages was £266,350.
The median award for injury to feelings was £3,500, down from £4,000 in 2003. In 83% of cases, the employment tribunal made specific reference to Vento when deciding on the amount to award.
Table 8 shows the distribution of injury to feelings awards, including aggravated damages, in race cases. Some 9% of awards were for less than £1,000, with one case not receiving an award.
Unlike total awards, the level of awards for injury to feelings is slightly down on the previous year. More than half of awards (59%) received less than £5,000 in 2004, compared with 51% in 2003. Some 37% of cases received an award of between £5,000 and £20,000 in 2004, compared with 43% of cases in 2003. Just two awards (4%) were for £20,000 or more in 2004, compared with four (7%) in 2003.
The highest award was in Pachappen v Accor UK t/a Ibis Hotel, discussed above. The other was:
Purves v Southampton University Hospitals NHS Trust (20 May 2004; case no.3103968/02).
A Southampton tribunal awarded £20,000 for injury to feelings to a nurse of Afro-Caribbean origin who was prevented from caring for a white baby after the baby's mother admitted she was a racist and did not want a black person to care for her child.
The child, known as LS, often needed to be admitted to hospital. She was moved from the ward that Mrs Purves worked on to a different one and, when the two children's wards were amalgamated, she was moved from one end of the ward to the other to satisfy her mother's demands. Mrs Purves' exclusion of caring for LS extended over a period of some seven years.
The trust argued that it was protecting Mrs Purves from the child's mother. The tribunal found that: "The respondent was silently complicit in the racist demands being made by Mrs LS as to the treatment of her daughter. We also have no doubt that this was on the grounds of the applicant's race." The trust also contended that Mrs Purves did not suffer any detriment. In the tribunal's view the detriment to Mrs Purves, who had worked at the hospital for almost 30 years and won a Local Carer of the Year award in 2002, was substantial. "We take the view that this is conduct of the worst kind," it concluded when making the award.
Injury to feelings awards by category
As with total awards, the terms and conditions category has the lowest median - £1,250. The other categories, however, are notable for the small variation that exists in the level of award: a median of £3,500 for victimisation, £4,000 for dismissal, harassment and less favourable treatment and £5,000 for recruitment and promotion.
As noted above, in the vast majority of cases (83%) the employment tribunal made specific reference to Vento when deciding on the amount to award. Despite this, it is difficult to predict what level of injury to feelings award a case might attract.
For example, a chef who was denied the opportunity to work at the Wimbledon Tennis Championships - something he had done for eight previous years, taking holiday from his regular job to do so - was awarded £5,000 injury to feelings by the London South tribunal (Menhal v Facilities Management Catering). By way of contrast, a female cleaner working nights alleged she was dismissed after telling her employer she intended to bring proceedings against them for racial discrimination. The woman was awarded £1,000 for injury to feelings. Seven months later, at the Bedford tribunal hearing (Sousa v UK Cleaning Company), she was still unemployed owing to childcare difficulties, and the tribunal recognised that she had taken all reasonable steps to mitigate her loss.
Aggravated damages
A separate award for aggravated damages was made in just three cases of race discrimination in 2004 - 5.5% of all awards, compared with 20% the previous year. The awards were for £2,500 in Mirikwe v St Botolph's Project (11 May 2004; case no.3201002/03), £3,000 in Pachappen v Accor UK t/a Ibis Hotel (discussed above) and £6,000 in Mitchell v The Governing Body of Hayes School (below).
Mitchell v The Governing Body of Hayes School (26 October 2004; case no.1100812/2004) (EOR 140).
An Ashford tribunal made an award of £6,000 for aggravated damages after the tribunal found the respondent's approach to the remedy hearing to be high-handed, insulting and malicious. There was no apology to the claimant, nor any acceptance by the respondent of the seriousness of the claim. The tribunal accepted Mr Mitchell's description of the respondent's conduct at the remedy hearing as "outrageous".
Mr Mitchell is a black man who is acknowledged to be an experienced and extremely competent teacher of English. He joined the school in September 2003 as a locum and then worked for the school on a fixed-term contract until May 2004. Mr Mitchell was looking for a permanent position and the school knew this. He was told he would have to apply for vacancies, despite the fact that other staff in a similar position were appointed with no formal recruitment process.
The tribunal found that many of the statements set out in documents produced by the respondent for the remedy hearing were not supported by evidence and were easily discredited by Mr Mitchell's evidence. It concluded that the remedy bundle must have been produced to discredit Mr Mitchell; behaviour the tribunal described as "malicious".
The tribunal expressed its surprise that the respondent had chosen to continue to defend the claim in this manner, and concluded that the way the respondent had dealt with the remedy hearing had caused Mr Mitchell a significant amount of injury to feelings.
The tribunal also awarded Mr Mitchell £6,000 for injury to feelings, £5,978 for loss of earnings and £11,830 for future loss. With interest of £311, the tribunal made a total award of £30,119.
Personal injury
An award for personal injury was made in just one case of race discrimination in 2004, compared with eight cases in 2003.
Alexander v Leeds Mental Health Teaching NHS Trust (5 February 2004; case no.1805938/2002).
A Leeds tribunal awarded Dr Alexander a £3,000 personal injury award in respect of damages to his psychiatric health, in addition to an award of £9,000 for injury to feelings.
Dr Alexander, who was of Indian origin, had been employed by the trust as a consultant psychiatrist since 1979 and was one of their most experienced consultants. A discretionary points scheme for consultants was introduced in 1995 and Dr Alexander had applied each year. He could see no reason other than his race or ethnic origin for his failure to be successful. An appeal against his marking was heard in 2002.
The tribunal had serious concerns about the appeal hearing and, in its view, those conducting it had closed their mind to the possibility of race bias having any bearing on the scoring. The tribunal concluded that Dr Alexander was discriminated against by the failure to deal adequately with his appeal.
The trust disputed that Dr Alexander had suffered any psychiatric injury, pointing out that he did not visit his GP for a significant period of time, nor did he seek any medical help over and above the visits to his GP. The tribunal's view was that because Dr Alexander is a psychiatrist, he would not be expected to visit his GP in the same way as others would, unless he required a prescription. Dr Alexander's GP did present evidence of Dr Alexander having symptoms of a mixed anxiety/depressive disorder, which the tribunal accepted.
Gender
Exactly twice as many men received an award for race discrimination in 2004 as women - 36 men compared to 18 women.
However, more men are represented in the lower range of awards. Nine men received total compensation of less than £2,000, compared with three women. Unlike 2003, which was the first year that we looked at race awards by gender, women received higher levels of compensation then men in 2004. The median for the total amount of compensation received by women was £8,521, whereas men were awarded a median of £5,607. The difference in the average is even more marked - £17,414 for women, compared with £13,122 for men.
The higher level of compensation paid to women is chiefl y explained by the substantial awards received for loss of earnings and future loss of earnings. This is in contrast to 2003, when no woman received an award for future loss of earnings. In 2004, 18 received £196,965 for loss of earnings and future loss of earnings, compared with 36 men who received £200,113. In the case of Mazumdar v Wandsworth Council (18 June 2004; case no.2303027/02), £60,000 was awarded to the female claimant for pension loss. Heynes v HM Prison Services Agency (18 May 2004; case no.2302038/2003) also saw significant sums paid for loss of earnings and future loss. Ms Heynes received £45,096, in light of the tribunal's view that she was unlikely to ever regain the salary or pension rights she had enjoyed with the Prison Service.
With regard to injury to feelings plus aggravated damages, the median award received by women was £5,000, whereas the median of awards made to men was £3,000.
Employment sector
In terms of employment sector, seven of the 18 awards made to women occurred in the public sector and six from general services. For men, the largest number of awards were in hotels and catering and food, drink and tobacco. Just five of the 36 awards made to men were by public sector employers.
As in 2003, more than one-fifth of awards (22%) were made against public-sector employers. However, in 2004 they paid out a slightly lower proportion of the total compensation (29%) than in the previous year (33%). The public sector had a range of discrimination complaints, with terms and conditions being the most prevalent.
Disability discrimination
In 2004, employment tribunals awarded total compensation of £2,628,884 in 91 cases of disability discrimination. This is an increase of 89% in the level of total compensation awarded in 2003. With interest, the total payout in disability cases in 2004 came to £2,700,086. It should be noted that this large increase in total compensation is not due to a jump in the number of awards, which rose by just two cases from the previous year, or from a few very large awards. Rather, it is due to employment tribunals making larger payments across the board, as can be seen from the distribution of awards. Note also that this does not include the record amount to be awarded to Beart v HM Prison Service of over £400,000 (see box 3).
Distribution
Table 11 shows the distribution of awards in disability discrimination cases in 2004. The highest award was for £203,617, and the lowest was £525. The distribution table reveals that most employers (55%) had to pay £10,000 or more for disability discrimination. This compares with one-third (34%) the previous year.
In one case, there was no compensation awarded, and just one award was for less than £1,000, compared with six the previous year. Slightly more than a quarter of awards (27%) received a total of less than £5,000, compared with more than one-third (37%) in 2003. Eight awards were for £100,000 or more, whereas only two such awards were made in 2003.
Browne v Greater London Magistrates Courts Authority (5 November 2004; case no.2203998/2002) (EOR 141).
London Central tribunal awarded £206,415 compensation, including interest, to a court usher who resigned after more than three years of trying to get her employer to make reasonable adjustments for her disability.
Mrs Browne suffered with chronic pain in her feet. Despite medical evidence that her pain was increased by standing or walking for periods of several hours, and that a suitable adjustment might be to try and alternate her standing with periods of work that allowed her to be sitting down, her employer failed to make any of the adjustments suggested. The tribunal concluded that it would have been a reasonable adjustment to vary the rota to allow Mrs Browne to be in court for half a day and in the office for half a day.
The failure to take this step was not justified, and Browne resigned as a result.
Injury to feelings
The tribunal awarded £15,000 for injury to feelings, placing it in the middle band in Vento. The reason given for it being placed in the middle bracket was because the discrimination "was not a one-off event but persisted over three years, resulting in Mrs Browne feeling justifiably constrained to resign her employment and give up work which she enjoyed".
Financial loss
The tribunal concluded that Mrs Browne, who was 57 when dismissed, was unlikely to find other paid work until retirement, and that her chances of finding pensionable employment were virtually nil. The tribunal calculated loss to the date of the hearing as £27,451 and assessed future loss at £65,685. Pension loss was calculated at £28,869. The total award, including interest and after grossing up to take account of tax, was £210,165.
Award levels by category
In table 13 we look at total award levels by category. As previously, the largest proportion of awards made were in relation to dismissal (52%). More than one-third of awards (34%) were made against employers who had unlawfully discriminated by dismissing the applicant, and 18% of awards were made where there was both dismissal and failure to make reasonable adjustment.
As in previous years, where failure to make reasonable adjustment was combined with dismissal, the median award of compensation was higher than for dismissal alone. Where dismissal was the sole issue, employment tribunals made a median award of £17,532 - this is a massive 119% increase on the median award of 2003. The average award in 2004 was £33,324 - almost twice that of the 2003 average of £17,065.
Where an award was made for dismissal and failure to make reasonable adjustment, the median again doubled, to £17,144, and the average was £27,977.
Unlawful discrimination based solely on failure to make a reasonable adjustment, where dismissal was not involved, accounted for 17% of all awards. The median award was £8,000 - a 60% increase on the median of the previous year. The average award rose by a massive 251%, from £9,959 to £34,972.
Awards for less favourable treatment accounted for almost one-third of all awards (31%). In this category, the median rose by 255%, from £2,250 to reach £8,000. The average award rose by 216%, to £22,770.
Injury to feelings
Awards for injury to feelings - including aggravated damages but excluding personal injury - amounted to £615,410. This accounted for less than a quarter (23%) of the total compensation awarded for disability discrimination (compared with 27% the previous year). The figures contrast with race and sex discrimination, where injury to feelings compensation accounted for over one-third (36% and 39% respectively) of the total awarded. All of which reflects the higher awards for loss of earnings (in particular, future loss) rather than a lower level of injury to feelings awards.
The median award for injury to feelings was £5,000, an increase of 40% on the £3,000 median of the past three years. The average amount awarded by employment tribunals was £6,763, a rise of 61% on the 2003 average of £4,198.
Table 12 shows the distribution of injury to feelings awards in disability cases and confirms that the level of awards has risen. In three cases an award of less than £1,000 was made, compared with eight the previous year. In 2004, less than half of awards (43%) were below £5,000, compared with two-thirds (66%) in 2003. Just under a quarter of awards (24%) were for £10,000 or more, compared with 11% the previous year. The highest injury to feelings award was £40,000.
The award of £40,000 for injury to feelings included personal injury and was made under the terms of a compromise agreement. The next-highest injury to feelings award of £34,200 was also an amount agreed between the parties.
Jones v IBM UK (27 October 2004; case no.2604007/01).
At the Nottingham tribunal a compromise agreement was made in settlement of a claim for personal injury and disability discrimination. Unusually, the details of the parties' agreement were set out in the tribunal's judgment and the figures are accordingly included in our survey. In addition to the £40,000 for injury to feelings and personal injury, the employer agreed to pay £79,875 in respect of special damages and financial loss, plus the claimant's costs of £55,125.
Martin v Royal London Society for the Blind (15 December 2004 and 21 April 2005; case no.1100780/03).
The respondent admitted liability for the claims that had been set out, so the parties moved straight to a remedy hearing. A sum of £34,200 was an agreed settlement in respect of injury to feelings. The tribunal then considered other remedies.
It made an award of £10,000 for personal injury for psychiatric damage that the tribunal found was caused to Ms Martin by her employer's conduct. Ms Martin had been dismissed and the tribunal made an award of £30,610 for loss of earnings and £63,382 for future loss, making a total award of £142,596.
Injury to feelings awards by category
The highest median award in respect of damages for injury to feelings was in cases of dismissal and failure to make reasonable adjustment (£8,750) - a 191% increase on the median award for this category in 2003 (£3,000).
The median award for less favourable treatment also rose dramatically, by 186% to reach £5,000, compared with £1,750 the previous year. This category also saw the highest rise in the average level of award - an increase of 139% to £6,479.
The smallest increase in the level of median awards was for cases of dismissal alone, but these still experienced a significant rise of 43% - from £3,500 in 2003 to £5,000 in 2004. Failure to make a reasonable adjustment attracted a median award of £6,000 in 2004 - a 71% increase from 2003.
Aggravated damages
An award for aggravated damages was made in four cases of disability discrimination in 2004, ranging between £1,000 and £8,000.
Hall v Broadacres Housing Association (16 November 2004; case no.2506939/03).
Mrs Hall worked as an administration assistant/receptionist for Broadacres Housing Association and in January 1999 was transferred to its Thirsk office, where she worked three mornings a week in the reception area. One of the mornings was spent at the cash desk, whose layout caused her problems. Mrs Hall had her right leg amputated when she was eight years old and she finds it painful to twist to her right. This also affects her balance. The position of equipment at the cash desk meant she was forced to swivel to her right and move backwards.
Mrs Hall put up with the position of the desk and equipment until February 2001 when she was due to be fitted with a new prosthetic limb, which she knew would be initially uncomfortable and would require some adjustment. Subsequently, plans were drawn up for office alterations but these took no account of Mrs Hall's needs, with equipment still being placed to her right. The proposed alterations were for the benefit of all users, not for Mrs Hall.
Nothing was done to alleviate the problems that Mrs Hall encountered, other than to move her to other work, which made her feel she was not fulfilling her job description. Finally in March 2003, adjustments were made but these still resulted in discomfort for Mrs Hall.
The tribunal found that Mrs Hall's repeated complaints to her line manager from 2001 to 2003 were never passed across to the personnel department. Her line manager treated her less favourably over this period and, at a meeting in September 2003, essentially told Mrs Hall that if she could not perform like an able-bodied person she should resign. The tribunal described this as "the most appalling ultimatum to give to anybody, particularly to a disabled person who has been patient for the last two-and-a-half years".
The tribunal criticised senior managers' "complete abdication of responsibility" in their failure to tackle Mrs Hall's line manager about her behaviour to Mrs Hall and the failure to make reasonable adjustments for a disabled person.
Injury to feelings
The tribunal described the case as "the worst case of disability discrimination any of the members of this tribunal have seen", stating that for two years Mrs Hall was made to feel "like a misfit and a beggar". In addition to making an award of £8,000 for aggravated damages, the tribunal awarded £24,000 for injury to feelings - considerably in excess of the £15,000 argued for by Mrs Hall's counsel - because of the effect of her employer's behaviour on Mrs Hall.
Personal injury
Tribunals awarded damages for personal injury in eight cases in 2004. The awards ranged from £3,000 to £15,000 in two cases, in contrast to an upper limit of £24,000 the previous year.
Allen v Redcliffe Catering Ltd (29 November 2004 and 21 April 2005; case no.1303042/2002).
Mrs Allen was employed as divisional accountant in the contracts catering division from 1998. Her hours increased as her employer's business expanded, until she was working 70 to 80 hours a week. In 2001 she only took 3.5 days annual leave out of her allowance of 22 days.
She was forced to take sick leave in June 2002 and her doctor diagnosed reactive depression. She returned to work in July. Later that month she saw that one of her subordinates, Joanne Thompson, was accessing an internet site for personal use and confronted her about this. Ms Thompson felt humiliated by the public reprimand and subsequently made a complaint to human resources.
A few days later Mrs Allen was required to have a customer's accounts ready for a meeting. She worked until 9pm but did not complete the accounts. On going home she was initially unable to sleep and then did not wake up until the afternoon of the next day, 30 July, when she rang a colleague and asked him to notify human resources.
Her employer took the decision to suspend her because of the perhaps-inappropriate reprimand of Ms Thompson, her unauthorised absence and the outstanding accounts. An investigation meeting in August also dealt with other matters surrounding un-banked cash. Mrs Allen was then dismissed for gross misconduct.
Following her dismissal, Mrs Allen's mental state deteriorated and she was admitted as an inpatient to a psychiatric hospital where she remained for eight months.
The tribunal found that none of the charges faced by Mrs Allen amounted to gross misconduct and some charges, such as the failure to produce the accounts, were performance issues. The dismissal was therefore unfair.
In relation to some charges where the issue was a decline in performance, the question arose as to whether the reason related to her disability of depression. The tribunal found that Mrs Allen's dismissal took place for a reason related to her disability.
The tribunal concluded that Mrs Allen suffered work-related stress that had a significant effect upon her. The eight-month period in a psychiatric hospital indicated that the psychiatric damage suffered was relatively severe. The tribunal estimated that her earnings ability would be impaired for a further two years. It made an award of £15,000 for personal injury.
The tribunal made an award in relation to injury to feelings of £12,000 - the upper end of the middle band set out in Vento. The total award, including interest and after grossing up to take account of tax, was £120,091.
Future loss of earnings
An amount for future loss of earnings was assessed separately in 24 cases in 2004 and accounted for 33% of the total amount awarded in disability cases, compared with 20% the previous year.
The amounts awarded ranged from £1,695 to £118,818. Almost two-thirds of the awards for future loss of earnings were for more than £20,000, refl ecting the tribunal's view that, where the applicant has been dismissed on grounds of their disability, it would prove difficult for them to subsequently gain other employment. Indeed, six of the awards were for sums of more than £50,000. Employers can therefore expect future loss of earnings to form the bulk of large awards made against them in cases of disability discrimination.
Gender
More men than women received an award for disability discrimination in 2004 - 57 men compared with 35 women. Overall, men received higher levels of compensation than women. The median for the total amount of compensation received by women was £10,712, whereas men were awarded a median of £11,242. Women received a higher average total award (£30,279, compared with £27,824), but this is because women received the four highest awards in 2004.
In respect of injury to feelings, 33 women received an award, compared with 52 men. The median for both sexes was £5,000 and there was little difference between the average of £8,142 for women and £8,246 for men.
With regard to future loss of earnings, the 24 awards made were evenly split between men and women. The amount awarded for loss of earnings to men, however, totalled £551,168, compared with £339,971 received by women. The median award for men was more than twice that for women - £38,780 compared with £17,978.
Combined jurisdiction
There were five cases involving more than one jurisdiction. Four involved race and sex discrimination and one was for sex and disability discrimination. The average and median in the these cases are the lowest for total award, but among the highest for injury to feelings. However, there is no indication that tribunals are making higher awards to compensate for "double" discrimination.
|
We list below the highest total compensation awards and highest awards for injury to feelings made by employment tribunals in disability, race and sex discrimination cases. |
||
|
Category |
Compensation award - total award |
Injury to feelings award (including aggravated damages) |
|
|
||
|
Disability discrimination |
£203,617 Browne v Greater London Magistrates' Court Authority The record award of £278,801 reported in 2001 in Newsome v The County Council of the City of Sunderland (EOR 108) has since been set aside on appeal (see EOR 126). For a record amount, see Beart v HM Prison Service in box 3. |
£40,000 Jones v IBM Ltd |
|
Race discrimination |
£90,158 Pachappen v Accor UK t/a Ibis Hotel (Record award - £761,867 awarded in 2002 in Chaudhary v British Medical Association (EOR 124)) |
£23,000 Pachappen v Accor UK t/a Ibis Hotel |
|
Sex discrimination |
£175,000 Griffin v West Midlands Police Authority (Record award - £1,374,346 awarded in 2002 in Bower v Schroder Securities Ltd (EOR 124)) |
£22,500 A v R Ltd |
Back to top
* The median is the midpoint between the highest and the lowest awards, where half the awards are above and half are below it. In most cases, it is a more revealing measure than the average since it is not affected by very high or very low awards.
Back to top
* The median is the midpoint between the highest and the lowest awards, where half the awards are above and half are below it. In most cases, it is a more revealing measure than the average since it is not affected by very high or very low awards.
Back to top
Back to top
* Excludes personal injury awards.
Back to top
* Due to some cases involving more than one category of sex discrimination, the total number of awards is greater than the number of cases overall.
Back to top
* Due to some cases involving more than one category of sex discrimination, the total number of awards is greater than the number of cases overall.
Back to top
Back to top
* Excludes personal injury awards.
Back to top
* New category in 2004. This applies to direct discrimination, where the claimant is less favourably treated on grounds of their race, but the consequence is not explicit in the judgment.
† Due to some cases involving more than one category of race discrimination, the total number of awards is greater than the number of cases overall.
Back to top
† Due to some cases involving more than one category of race discrimination, the total number of awards is greater than the number of cases overall.
* New category in 2004. This applies to direct discrimination, where the claimant is less favourably treated on grounds of their race, but the consequence is not explicit in the judgment.
Back to top
Back to top
* Excludes personal injury awards.
Back to top
* Due to some cases involving more than one category of disability discrimination, the total number of awards is greater than the number of cases overall.
Back to top
* There was no award for injury to feelings in three cases.
† There was no award for injury to feelings in three cases.
Back to top
|
"(i)The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000. (ii)The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band. (iii)Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings." |
Back to top
